UMMA v. ZUBAIR AND ANOTHER

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CA
Umma v. Zubair and Another
169
UMMA
v.
ZUBAIR AND ANOTHER
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 49/1998DC KURUNEGALA NO. 1774/PNOVEMBER 09. 2001
Partition Law, No. 21 of 1977, sections 12, 14 (1) and 48 (3) – Interlocutory decreesentered- Vacation of same – Summons/notice not issued – Us pendens not correctly .registered – Non-compliance with section 12 – Could the interlocutory decree be setaside by the trial court?
The petitioner-respondent sought to intervene in the partition action subsequent toan alienation by the 4th defendant, who allegedly also disclosed the petitioner-respondent as a necessary party, and moved to vacate the interlocutory decreeentered on the basis that he was not issued with summons/notice and further thatthe lis pendens was not correctly registered, and that there was non-compliance withsection 12.
The District Court allowed the application.
Held:
Section 48 (4) could not bar a court from holding that in the event summons'had not been even issued from coming to a finding that such non-issue wasimproper or that the court had no jurisdiction to proceed. Section 48 (4) couldnot suppress the rights of parties to claim their due rights in partition actionswhich are decrees in rem.
There has also been blatant disregard to section 14 (1) and deliberatenon-compliance with section 12; even the registering of the lis pendens isnot in the correct folio.
Notwithstanding section 48, the District Court is not precluded from givingeffect to an unlawfully obtained interlocutory decree causing a gravemiscarriage of justice.
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Sri Lanka Law Reports
[2002] 3 Sri L.R.
APPLICATION for leave to appeal from the Order of the District Court of Kurunegala.Cases referred to :
Somawathie v. Madawala – (1993) 2 SLR 13.
Mononmani v. Velupillai- 60 NLR 289.
Ittapana v. Hemawathie – (1981) 1 SLR 476.
Perera v. Commissioner of National Housing – 77 NLR 361.
Siriwardena v. Jansu Umma – 59 NLR 400.
Reza Muzni for petitioners.
Faiz Musthapa, PC for petitioner-respondent.
Ranjan Suwandaratne for 1st defendant-respondent.
Cur. adv. vult.
May 02, 2002UDALAGAMA, J.
As per the submissions of the learned counsel for the plaintiff by ajudgment dated 13. 03. 1997 the predecessor to the District Judgewho made the impugned order directed that interlocutory decree beentered accordingly.
The petitioner-respondent, one Zubair, by his petition and affidavitin or about August, 1997, sought intervention subsequent to an alienationby the 4th defendant to the action who allegedly also disclosed thepetitioner-respondent as a necessary party.
The petitioner-respondent also moved to vacate the interlocutorydecree already entered on the basis that he was not issued withsummons or notice and further that the lis pendens was not correctlyregistered.
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CA
Umma v. Zubair and Another (Udalagama, J.)
171
It is submitted by the learned counsel for the petitioner citingSomawathie v. Madawala{')ha[ the learned District Judge had no powerto allow intervention after the entry of the interlocutory decree andfurther that the petitioner-respondent could have his remedy by wayof revision or restitutio in integrum. Although the above submissionis not without merit I am inclined to the view that even if this applicationis dismissed the petitioner-respondent would not be precluded frommoving in revision and would only result in further delay in concluding 20this matter before the original court.
As held by Soza, J. in Somawathie v. Madawala referred to above,
His Lordship observed, inter alia, that: “the immunity given to a partitiondecree from being assailed on the ground of omissions and defectsof procedure as now broadly defined and failure to make personsconcerned parties to the action should not be interpreted as a licenseto flout the provisions of the partition law. This court will not hesitateto use revisionary powers and give relief where a miscarriage of justicehas occurred resulting from non-conformity with the specific provisionsof the Partition Act”30
The finality of the interlocutory decree as contemplated in section48 (3) of the Partition Act in my view could not prevent or precludea District Judge even to act under inherent powers to make right amiscarriage of justice occasioned.
The learned District Judge by his order dated 23.02.1998 set asidethe interlocutory decree entered in the instant case and permitted thepetitioner to tender a statement of claim. I would not fault the learnedDistrict Judge for the above reasons for having come to the saidconclusion. I
I would further hold that section 48 (4) of the Partition Act 40No. 21 of 1977 could not bar a court from holding that in the eventsummons had not been even issued in an action for partition fromcoming to a finding that such non-issue was improper or that the court
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in such instance had no jurisdiction to proceed. Besides, section48 (4) referred to above could not suppress the rights of parties toclaim their due rights in partition actions which are decrees in rem.
As held by the learned District Judge there appears to have beena blatant disregard to section 14 (1) of the Partition Law and deliberatenon-compliance to section 12 of the Partition Law too.
I would hold that the learned District Judge was correct in his finding sothat non-compliance of section 12 of the Partition Act renders theproceedings void ab initio. The learned District Judge appears to haverelied on a number of authorities particularly, Mononmani v. VelupillaiIththapana v. Hemawathie,® Perera v. Commissioner of National Housing,wSiriwardena v. Jausu Umma,(S) to come to a finding that the failureto notice the parties and even to register the lis pendens in the properfolio is not in accordance with the law and that notwithstanding section48 referred to above that a District Judge is not precluded from givingeffect to an unlawfully obtained interlocutory decree causing a gravemiscarriage of justice.eo
I see no reason to interfere with the order of the learned DistrictJudge which in fact only sets aside a part of the proceedings.
This application is dismissed with costs fixed at Rs. 5,250.
NANAYAKKARA, J. – I agree.
Application dismissed.